Prow Pty Ltd v Commissioner for Police
[2012] WASC 363
•24 SEPTEMBER 2012
PROW PTY LTD -v- COMMISSIONER FOR POLICE [2012] WASC 363
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 363 | |
| Case No: | GDA:10/2012 | 24 SEPTEMBER 2012 | |
| Coram: | HALL J | 24/09/12 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for director to represent company refused Appellant given opportunity to retain solicitors | ||
| B | |||
| PDF Version |
| Parties: | PROW PTY LTD COMMISSIONER FOR POLICE |
Catchwords: | Appeal from Liquor Commission Whether appeal properly commenced Whether O 4 r 3 Supreme Court Rules 1971 (WA) complied with Whether company director can act for and appear for company in appeal proceedings |
Legislation: | Liquor Control Act 1988 (WA), s 3, s 5, s 17, s 28 Supreme Court Rules 1971 (WA), O 4 r 3 |
Case References: | Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372 Miorada v Miorada [2005] WASC 105 Re Hoffman [2004] WASCA 238 Sammut v AVM Holdings Pty Ltd [2011] WASC 194 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
COMMISSIONER FOR POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : LIQUOR LICENSING COURT OF WESTERN AUSTRALIA
Coram : MR J FREEMANTLE (CHAIRPERSON)
- MS H COGAN
MR E WATLING (MEMBERS)
File No : LC 17 of 2012
Catchwords:
Appeal from Liquor Commission - Whether appeal properly commenced - Whether O 4 r 3 Supreme Court Rules 1971 (WA) complied with - Whether company director can act for and appear for company in appeal proceedings
(Page 2)
Legislation:
Liquor Control Act 1988 (WA), s 3, s 5, s 17, s 28
Supreme Court Rules 1971 (WA), O 4 r 3
Result:
Application for director to represent company refused
Appellant given opportunity to retain solicitors
Category: B
Representation:
Counsel:
Appellant : Dr J Sainken (with leave)
Respondent : Mr B D Nelson
Solicitors:
Appellant : Not applicable
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372
Miorada v Miorada [2005] WASC 105
Re Hoffman [2004] WASCA 238
Sammut v AVM Holdings Pty Ltd [2011] WASC 194
(Page 3)
- HALL J:
(These reasons were delivered orally and have been edited from the transcript)
Introduction
1 This is an appeal from a decision of the Liquor Commission made on 29 May 2012. The appeal is brought pursuant to s 28 Liquor Control Act 1988 (WA) (LCA). The appeal was commenced by an appeal notice filed on 19 June 2012. The notice was in the name of the appellant but was signed by Dr Jon Sainken, who was described in accompanying documents as a director of the appellant company.
2 On 25 July 2012 an officer of the court wrote to Dr Sainken in his capacity as a director of the appellant. That letter was written at my direction. The letter noted that O 4 r 3 of the Supreme Court Rules 1971 (WA) (SCR) provides that a body corporate may not begin or carry on any proceedings in this court otherwise than by a solicitor. It was also noted that the appeal notice made no reference to a solicitor and indicated that the appellant was self represented. The letter asked whether the appellant was represented and, if not, on what basis the appeal could proceed, given the requirements of O 4 r 3.
The contentions
3 Dr Sainken has subsequently made submissions on this issue both in writing and orally (with limited leave) at a directions hearing today. In essence, his first submission is that he was given leave to represent the company in the Liquor Commission and the proceedings in this court are a continuation of the proceedings in the Commission. He says that provisions allowing an officer of a company to appear for a company in the Liquor Commission provide an express statutory exception to the prohibition in O 4 r 3. He submits that, for that reason, he has a right to appear in this court for the appellant.
4 Dr Sainken's alternative submission is that the court should exercise its inherent power to permit him to appear for and speak on behalf of the company in the appeal proceedings in this court. He says that O 4 r 3 does not prevent a court from giving leave to a person who is not a solicitor to represent and speak on behalf of a company in an appropriate case. He submits that this is such a case.
5 The second respondent submits that both arguments should be rejected and that the appeal is irregular and should be dismissed. It is said
(Page 4)
- that the filing of the appeal notice was a step taken in legal proceedings that was done in contravention of O 4 r 3. There is no power to exempt a party from compliance with this rule. It is further submitted that the inherent power to permit a non-lawyer to represent a party does not relate to the filing of documents, particularly initiating process. Furthermore, it is said that the grounds for exercising the discretion to permit a non-lawyer to appear have not been made out.
Nature of the proceedings in the Liquor Commission
6 The nature of the proceedings in the Liquor Commission were as follows. On 13 March the second respondent lodged a complaint with the Liquor Commission. The complaint was made pursuant to s 95 of the LCA against the appellant. The complaint was in respect of activities that were said to have occurred at licensed premises, being Club Bayview. The appellant is the licensee of those premises.
7 On 29 May 2012, the Commission, constituted by three members, conducted a preliminary hearing in response to the appellant's submission that certain documents that had been provided by the second respondent in support of the complaint should be excluded from the Commission's consideration.
8 Following that preliminary hearing, the Commission determined, amongst other things, that the documents submitted by the second respondent were to be admitted into evidence and issues raised by the appellant in relation to those documents would be considered in the substantive hearing. The appellant was also directed to lodge a submission identifying those witnesses it wished to cross examine and the issues to be the subject of cross-examination.
9 This appeal is from the decision made by the Commission regarding the admission of documents. As I understand it, a substantive hearing of the complaint has not yet occurred. It may well be that a substantive hearing has been delayed pending this appeal.
10 In the preliminary hearing in the Commission Dr Sainken sought and was granted leave to appear for the appellant. That leave was granted pursuant to s 17 of the LCA.
Does s 17 LCA provide for a right of appearance on an appeal to this court?
11 As to the first argument raised on behalf of the appellant; that is that Dr Sainken has a right of appearance, that argument relies principally upon s 17 of the LCA. That section provides as follows:
(Page 5)
- Representation of parties
(1) A party to proceedings being determined by the licensing authority may appear -
(a) personally; or
(b) by counsel; or
(c) if the party is a member of an association which the licensing authority recognises as having been formed to promote or protect the interests of a section of the liquor industry, or of employees in the liquor industry — by an officer or employee of that association; or
(d) if the party is a body corporate — by an officer or employee of the body corporate who has obtained leave of the licensing authority to appear on its behalf; or
(e) by any other person approved by the licensing authority.
(2) The Commissioner of Police may be represented before the licensing authority by a member of the Police Force, and where a member of the Police Force purports in any proceedings to represent the Commissioner of Police that person shall be deemed, in the absence of proof to the contrary, to have been authorised by the Commissioner of Police so to do.
12 Order 4 rule 3 of the SCR provides as follows:
Individual may act in person or by solicitor; body corporate must act by solicitor
(1) Subject to subrule (2) and to Order 70 rule 2, any person (whether or not he sues as a trustee or personal representative or in any other representative capacity) may begin and carry on proceedings in the Supreme Court by a solicitor or in person.
(2) Except as expressly provided by or under any Act a body corporate may not begin or carry on any such proceedings otherwise than by a solicitor.
13 Dr Sainken's contention is that s 17 LCA falls within the exception allowed for in O 4 r 3 SCR as being an express provision in an Act allowing a body corporate to be represented by someone other than a solicitor. He refers in his submissions to the fact that the LCA has as one of its objects to provide a flexible system with as little formality or technicality as is practicable for the administration of the Act. See s 5(2)(e).
(Page 6)
14 There is an obvious flaw in the argument. Section 17 of the LCA relates to proceedings determined by the 'licensing authority'. The 'licensing authority' is a term that is defined in s 3 of the LCA:
licensing authority means -
(a) in relation to an application or matter that is, under this Act, to be determined by the Commission - the Commission; and
(b) otherwise - the Director;
15 Proceedings before the licensing authority as referred to in s 17 are, therefore, proceedings before the Liquor Commission or the Director of Liquor Licensing. The present proceedings are not of that nature. They are appeal proceedings in the Supreme Court, the procedure for which is provided for by the SCR.
16 The Rules apply to all proceedings other than specified exceptions, of which this is not one: O 1 r 3. Whilst s 17 is a reflection of the less formal processes applicable to the Liquor Commission, proceedings in the Supreme Court do not necessarily take their nature from those in the court below. In particular, it should be noted that an appeal to this court from the Commission is only on a question of law (see s 28(2)), and that is a factor that may be relevant to the nature of the proceedings in this court.
17 Accordingly, O 4 r 3 SCR applies to these appeal proceedings and s 17 LCA does not. The result of that is that Dr Sainken's argument that he has a right to commence and prosecute proceedings in this court on behalf of the appellant pursuant to s 17 must be rejected.
Can leave be granted for a non-lawyer to represent a company in proceedings?
18 I turn to the second argument. There is no power to dispense with the requirements of O 4 r 3. I refer to Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372. This means that compliance with the requirement that no step be taken on behalf of the company other than by a solicitor cannot be waived.
19 The court can, however, exercise an inherent power to allow a person other than a solicitor to act as a spokesperson in proceedings. I refer to Re Hoffman [2004] WASCA 238 and also to my decision in a single judge appeal in Sammut v AVM Holdings Pty Ltd [2011] WASC 194.
(Page 7)
20 However, to allow a person to appear as an advocate for a company is to be distinguished from taking steps in a proceeding, as referred to in O 4 r 3. This is a reference to formal steps, such as the commencing of proceedings by filing an appeal notice.
21 Where the inherent power is exercised, factors that may be relevant were referred to Miorada v Miorada [2005] WASC 105. The factors include whether or not a body corporate can afford legal representation, whether or not the person has been given authority to advocate on behalf of the body corporate, whether or not the person seeking to advocate on behalf of the body corporate has relevant experience and demonstrates an ability to understand and express his or her view of the facts, whether or not a party to the proceedings opposes the application, and whether or not the conduct of the proceedings can be managed to ensure no party suffers prejudice as a result.
22 The discretion, however, is to be exercised sparingly. There are obvious policy reasons behind these requirements. Firstly, it may open up a vast field of litigation to untrained advocates. Secondly, there must always be a concern on the part of the courts that a person who purports to represent a company may or may not have authority to act on its behalf. Thirdly, the interests of the company, as distinct from the interests of an officer or representative, may not necessarily be the same, and the court must guard against the possibility of a conflict of interest.
23 Dr Sainken's argument that he should be permitted to act as a spokesperson for the appellant has several problems. Firstly, the inherent power to allow a non-lawyer representative to appear does not overcome O 4 r 3 and the prohibition on taking formal steps in proceedings. That non-compliance cannot be remedied by any exercise of inherent power. Secondly, Dr Sainken's application is unsupported by any evidence in affidavit form that would justify the extraordinary step of allowing him to speak on behalf of the company. That is to be contrasted with Sammut, where there was affidavit evidence that the respondent company was financially unable to retain a solicitor and would be prejudiced by not being able to present its case with the assistance of one of its directors.
Conclusion
24 Order 2 SCR provides for the consequences of non-compliance with the Rules. The effect of noncompliance is that proceedings are irregular but not necessarily a nullity. The court can exercise a power to make orders that will have the effect of rendering the proceedings effective
(Page 8)
- notwithstanding that they were commenced in a way that did not comply with the rules.
25 In the present case, Dr Sainken has indicated that if his arguments failed, he would seek an adjournment for the purposes of instructing solicitors for the limited purpose of assisting him with commencing these proceedings in a way that complies with O 4 and to then make an application, supported by affidavits, for him to have the opportunity to advocate on behalf of the company.
26 It is within my power to make orders that would permit an opportunity to regularise these proceedings. That may obviate the need for the appellant to recommence proceedings and seek an extension of time to do so. Whether or not the evidence would establish a basis for exercising the inherent power, however, cannot be known at this stage.
27 What I propose to do is make the following orders.
(1) the application for Dr Sainken to represent the company is refused at this stage;
(2) the appellant company has 14 days in which to retain solicitors to act for it. Those solicitors are to file a notice of acting and a fresh notice of appeal within 14 days;
(3) failing compliance with Order 2, the appeal will stand dismissed (without prejudice to the appellant's right to recommence in accordance with the rules);
(4) there be liberty to apply; and
(5) the costs of these proceedings be reserved.
28 I also make an order that the first respondent, which is named in the appeal notice as the Liquor Commission of Western Australia, be removed from these proceedings because it is not properly named as a respondent.